Cannabis, Addiction, and the Workplace Agenda Overview state of - - PowerPoint PPT Presentation

Cannabis, Addiction, and the Workplace

October 24, 2019

Agenda

• Overview – state of the law regarding

cannabis

• How legalization of medical or adult use

cannabis impacts employment

• Anti-Discrimination
• Drug Testing
• Duty to Provide Reasonable Accommodation
• Addiction – Scope of Issue, Legal

Framework and Ramifications

2

Overview – Cannabis Laws

3

Cannabis – Federal Law

4

• Cannabis is a controlled substance, like

heroin or cocaine.

• Schedule 1 drug, meaning viewed as

highly addictive with no medical value.

• 2013 DOJ memo stated that prosecution
• f state legal medical marijuana cases is

not a priority, but rescinded under current Adminstration.

Cannabis – State Law

5

• Mixed bag:
• In some states (e.g. TX, VA), cannabis

remains illegal.

• Some states (e.g. NY

, NJ, IL, MD, DE, PA), have legalized cannabis for medical purposes

• nly.
• Some states (e.g. ME and CA), have legalized

both medical and recreational cannabis.

State Cannabis Law s

6

• All of the states that have legalized

cannabis permit employers to prohibit employees from possessing or using in the workplace.

• Most permit employers to prohibit

employees from coming to work under the influence.

• But see PA law: Employers may not discipline

employees for being under the influence unless the employee’s conduct falls below the standard of care normally accepted for that position.

The Difficult Questions

7

• Off Duty Use:
• May employers with drug testing policies still

test for cannabis in states where use is legal?

• May employers have a zero tolerance policy,

and refuse to hire individuals who use cannabis, even completely outside of work?

• How does an employer determine

whether an employee is under the influence?

Sources of Restrictions on Ability to Take Action Based on Off Duty Use

(1)State cannabis statutes expressly prohibiting discrimination or requiring accommodation of off duty use. (2)State laws prohibiting discrimination against employees who engage in lawful activities outside of work. (3)General anti-discrimination statutes requiring employers to provide reasonable accommodations to qualified employees with disabilities.

8

Cannabis Statutes Prohibiting Discrim ination

• Many state medical cannabis statutes

expressly prohibit discrimination against individuals simply because they use medical marijuana (e.g. IL, DE, ME, PA)

• DE statute expressly provides no action may

be taken on positive drug test, absent evidence of use or impairment at work.

• These laws typically permit adverse action if

necessary to comply with a federal contract, to qualify for federal funding, or if required under federal law.

9

Cannabis Statutes Affirm atively Requiring Accom m odation

• In New York, certified patients are

deemed to have a disability under the New York State Human Rights Law.

• Thus, New York employers with 4 or more

employees are not only prohibited from terminating / disciplining an individual who is a user, but must provide reasonable accommodations.

10

Cannabis Statutes That are Silent

• E.g., Maryland, New Jersey and California
• California’s medical marijuana statute

does not contain a non-discrimination provision.

• In 2008, CA Supreme Court held employers

could take action against an employee based

• n off-duty use that did not impact

performance.

• Recent legislative activity suggests CA will join

states with anti-discrimination provisions.

11

Am ericans w ith Disabilities Act ( ADA)

• Employers covered by the ADA (more

than 15 employees) must provide reasonable accommodation to qualified individuals with disabilities unless doing so would constitute undue hardship.

• Accommodations may include exceptions

from generally applicable policies.

• Will excepting an employee from a policy

prohibiting off-duty use ever be a reasonable accommodation under the ADA?

12

ADA cont.

• Qualified individuals with a disability include

individuals who have:

• Successfully completed drug rehabilitation
• Are participating in rehabilitation and are no

longer using

• Are erroneously regarded as using
• The ADA does not protect current users of

illegal drugs.

• Because cannabis is an illegal drug under

federal law, current users are not protected under the ADA (even if their use is lawful under state law).

13

State Law s Requiring Reasonable Accom m odation

• Most states have laws which, like the ADA,

require employers to provide reasonable accommodation to employees with disabilities, and have expansive definitions

• f disability.
• Is tolerance of off-duty use required as a

reasonable accommodation under state law?

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ANSW ER: I t depends on the state, and is an open question in m ost jurisdictions.

15

Ross, 2 0 0 8 CA decision

• Employee who used cannabis for chronic

back pain was terminated when he failed a drug test.

• Employee contended employer was

required to accommodate his off-duty use.

• Court found that, notwithstanding that

medical cannabis was legal under CA law, employer was not required to accommodate even off duty use of a drug that is illegal under federal law.

16

Coats, 2 0 1 5 CO decision

• Employee, quadriplegic, used medical

cannabis in accordance with state law,

• utside the workplace after work.
• Job – customer service representative for

Dish Network.

• Terminated after random drug test.
• Court found that CO’s “lawful activities”

statute did not prohibit his termination, because cannabis is unlawful under federal law.

17

Barbuto, 2 0 1 7 MA decision

• Applicant used cannabis in small

quantities, in the evening, 2-3 times / week.

• Job – entry level, promoting products in

supermarket.

• Court said that, under MA law, medical

cannabis was akin to any legally prescribed drug.

• Illegality under federal law immaterial,

since employer bears no risk for off-duty use.

18

Callaghan, 2 0 1 7 RI decision

• Employer refused to hire applicant after she

disclosed her status as a medical cardholder and failed a pre-employment drug test.

• Employer argued that non-discrimination

provision in medical marijuana law applied

• nly to discrimination based on status, not to

failing a drug test.

• The court held that this was a meaningless

distinction, and the employee had a cause of action for the employer’s violation of the medical marijuana statute.

19

Noffsinger, 2 0 1 8 CT decision

• Applicant with PTSD has offer withdrawn

after she failed a drug test.

• Court held the CT cannabis law was not

preempted by the federal Controlled Substances Act.

• Court held that a jury could find the

employer discriminated against the applicant on the basis of disability, by failing to consider an exception to its policy prohibiting even off-duty use.

20

Chance, 2 0 1 8 DE decision

• Employee involved in a work-related accident while
• perating a “shuttle wagon” on railroad tracks.
• Sent for a drug test, which indicated marijuana

use.

• Terminated, notwithstanding possession of a card.
• Delaware statute expressly prohibits termination

based on a positive test unless the individual used, possessed, or was impaired at work.

• Court found Delaware statute was not preempted

by federal law, which doesn’t make it illegal to employment a marijuana user.

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Eplee, 2 0 1 9 MI Decision

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• Employee’s conditional job offer rescinded after a

positive pre-employment drug test.

• Michigan statute says qualifying patients may not

be “denied any right or privilege including. . . disciplinary action by a business . . . for the medical use of marijuana. . .”

• Court said employee had no “right” to or property

interest in the job, and therefore had no claim.

W orkers’ Com pensation

23

* Bourgoin v. Twin Rivers (Me. 2018)

• Holding WC carrier cannot be compelled to subsidize

medical marijuana.

• Otherwise, carrier would be forced to aid and abet the

individual’s violation of federal law.

Appeal of Andrew Panaggio (N.H., March 7, 2019)

• Holding WC carrier not banned from reimbursing for

medical marijuana under state law.

• Remanding the case for further consideration of the

effect of federal law that makes possession a federal crime.

Note several states have relied on the federal policy

• f noninterference to compel carriers to cover.

W here Does This Leave Us?

Still unclear whether Law Court would hold employers are required to accommodate off duty medical marijuana use. Risky not to do so, unless a federal contract or statute (DOT) is in play or unless employer can demonstrate legitimate safety concerns. Assess timing of use, impact of use, and impact on employee’s job/ safety considerations. Unless safety risk is apparent, may be advisable to seek an expert opinion about impact of off duty use on employee’s ability to safely perform the job.

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State Law s Regarding Drug Testing

State laws around drug testing (generally) vary wildly:

• Which employers may test.
• Which employees they may test.
• The circumstances under which testing is

allowed (random or only on reasonable suspicion) etc.

• Following slides are directed toward

employers who are authorized to test under state law.

25

Testing for Cannabis

• No test currently exists to test for

impairment or impairment level.

• Testing will reveal only whether the

employee has used in the past several weeks (i.e. can simply confirm off duty use).

• There is no reason to test for cannabis unless

you can take some action based on the result.

• Knowing that someone is a user of medical

cannabis is problematic information to have if you cannot make a decision based upon that information.

26

Testing – Medical Cannabis

In states where discrimination against users is illegal (by statute or court decision) and no exception applies (e.g. conflict with federal law), employers should consider treating medical cannabis like any other prescribed drug and not receive positive test results if employee can produce a prescription to the tester.

27

Drug Use and Em ploym ent

Maine

• 360 overdose deaths in 2017
• “Top 10” state for highest rate of death
• 29.9 deaths per 100,000 persons

New Hampshire

• 424 overdose deaths
• “Top 5” state for highest rate of death
• 34 deaths per 100,000 persons

28

Drug Use and Em ploym ent

Massachusetts

• 1913 overdose deaths
• “Top 10” state
• 28.2 deaths per person

Rhode Island

• 277 overdose deaths
• Just outside the “Top 10”
• 26.9 deaths per 100,000

29

Drug Use and Em ploym ent

National Average

• 14.6 Deaths from Overdose

30

The Legal Fram ew ork

Drug Addiction is a Disability

• Cannot discriminate against an Employee or

Applicant for past drug addiction.

• Cannot reject an Applicant for fear of a

relapse.

Current Drug Use is Not Protected

31

Com m on Questions:

When can I test? Should I test? Is Leave a Reasonable Accommodation? What if the Employee shows up for work impaired? Is the answer different if the Employee can’t come to work because relapsed? Is use of medically prescribed opiates protected?

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Merrill’s Wharf 254 Commercial Street Portland, ME 04101

Charles S. Einsiedler, Jr.

ceinsiedler@pierceatwood.com

PH / 207-791-1388 CELL / 207-450-3453